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FREDERICK LINDSAY v. ARTHUR THOMAS ET AL. (09/14/83)

decided: September 14, 1983.

FREDERICK LINDSAY, A MINOR, AND DOLORES LINDSAY, AS MOTHER AND NATURAL GUARDIAN, APPELLANTS
v.
ARTHUR THOMAS ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Frederick Lindsay et al., No. 5851 May Term, 1979.

COUNSEL

David L. Harbaugh, with him Lawrence M. Schall, for appellants.

Constance B. Foster, with her John M. Elliott, Lawrence D. Berger, and Sheryl L. Auerbach, Dilworth, Paxson, Kalish & Levy, of counsel: Robert T. Lear, Assistant Counsel for appellees.

William Fearen, with him Michael I. Levin, Cleckner and Fearen, for Amicus Curiae, Pennsylvania School Boards Association.

President Judge Crumlish, Jr. and Judges Rogers, Blatt, Williams, Jr. and Doyle. Opinion by Judge Blatt.

Author: Blatt

[ 77 Pa. Commw. Page 172]

Frederick Lindsay and his mother, Dolores Lindsay (appellants), appeal from an order of the Court of Common Pleas of Philadelphia County which sustained the appellees'*fn1 preliminary objections and thereby dismissed the appellants' complaint with prejudice.

The appellants seek damages in trespass from the appellees and allege that the School District violated the special education provisions found in Sections 1371 and 1372 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. ยงยง 13-1371 -- 13-1372. They assert that the appellant, Frederick Lindsay, suffers from a "specific learning disability" and that during his attendance at a Philadelphia public school, the appellees failed to identify him as a student requiring special education classes and failed to educate him properly. The only claim which is now before this Court is the appellants' claim for money damages, which, they contend, is owed to

[ 77 Pa. Commw. Page 173]

    them as a result of the alleged mental and emotional suffering and loss of earnings which they have experienced by virtue of the appellees' failure to follow the statutory mandates of the Public School Code.

The appellees contend that the trial court correctly determined that no private cause of action for money damages can be implied from Sections 1371 and 1372 of the Public School Code. They argue that, inasmuch as there is no Pennsylvania case law directly on point, the intent of the legislature is the controlling factor, and the legislature did not intend the creation of a private cause of action for the breach of the statutory duty here in question.

It is undisputed that the appellees have a statutory duty to identify exceptional children and a duty to provide them with a proper education. These duties are clearly spelled out in Sections 1371 and 1372 of the Public School Code. There is, however, no statutory provision whatever for a monetary remedy arising out of a breach of these statutory duties. Of course, the appellants here had other remedies to compel compliance with the statutory duties, ...


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